During 2011, Mr & Mrs Zietsman bought a guesthouse situated in Tzaneen, Limpopo, from Mr Le Roux. They took occupation on 11 July 2011 and the property was property registered in their names on 30 September 2011. During their early occupation, it rained heavily. There was extensive leaking of the entire roof and an additional R240 000 was required to repair the roof. While the roof was being repaired, the guesthouse could not host any guests and the Zietsmans lost the income which would have been generated during that period.
The Zietsmans sued the seller and was successful in the court of first instance. The Sellers took the matter on appeal to the Supreme Court of Appeal (SCA), where the appeal was dismissed – 12 years after registration!
In the case before the SCA, it was pointed out that there were pre-existing defects to the roof, which were repaired before selling the property. However, the seller confirmed that he never considered the repairs to be a permanent solution to the leaking roof and that the latent defect was never disclosed to the purchasers. The court found that it was simply disingenuous for the Seller, who had been in occupation for five years, to say that he was unaware of the defects and found that he could not rely on the voetstoots clause in this case. The Seller has an obligation to declare all latent defects that he has knowledge of.
This case is an example in showing just how time consuming a legal battle regarding defects can become if the parties cannot reach an amicable solution. It is of the utmost importance that the Seller be advised of their obligation to disclose all knowledge of possible defects.
